In contracts with continuous, periodic or deferred execution, the party can ask for the termination of the contract if the performance has become excessively burdensome due to extraordinary and unforeseeable events (1467 cc). Only with respect to contracts with corresponding or deferred services, when they are of continuous or periodic or deferred execution, does the need arise to maintain the balance of the performance and only for them is it foreseen that if the balance is lacking, the contract can be Resolved. The rule on excessive supervening charges establishes a principle to protect the debtor against the risk of an exceptional or unforeseeable worsening of his performance (a legal patrimonial relationship cannot be kept alive when the conditions of equilibrium on which it arose have ceased to exist. ). The section of art. 1467 indicated the existence of a contract with corresponding services as a necessary prerequisite for the effective resolution due to excessive cost.
The doctrine has therefore highlighted that contracts with equivalent performance are those contracts in which the performances of the parties are indissolubly linked with each other with a functional interdependence: a category that for some coincides with exchange contracts or with the broader one of the bilateral contracts that implement a phenomenon of reciprocal asset displacement or that have a teleological relationship between services. The majority doctrine therefore does not consider the rule applicable to free contracts or to associative contracts. In particular, the applicability has been excluded in relation to free contracts, as they lack the requisite of correspondence.
The majority doctrine on the subject of associative contract has reached the same solution, noting how the onerousness of such contracts would only be mediated, since the services, before returning to the advantage of the other contractors, would pass through the social assets that would make them succeed without d ‘identity. In support of this orientation, there is the absence of one of the fundamental presuppositions or the absence of a synallagmatic interdependence link, in these contracts there is no conflict of interests, there is no conflict of interests and expect the commonality of purposes. to be pursued, which excludes a synallagmatic interdependence link that requires the maintenance of the balance of services to which, for example, the consortium member and the consortium are required respectively.
Continuous, periodic and deferred execution contracts. By virtue of the rule in question, contracts with continuous or periodic performance and those with deferred execution are resolvable. It is considered sufficient that only one of the services (or even simply a significant economic part of it) is such and that even a short period of time with respect to the conclusion of the contract is sufficient. The doctrine has distinguished two categories of contracts covered by the rule: those with a duration which include those with a continuous service and those with a periodic service and in relation to which the continuation of the services over time is an essential data and those with a subsequent stretch in the which, on the contrary, is the time interval between the conclusion of the contract and the execution of the services to play a decisive role, and in fact only during the period of time between the genetic phase (of the conclusion) and the implementation phase (of the execution) of the contract that situations may arise attributable to the scheme of art. 1467 cc In contracts with deferred execution, the interest of the creditor would be such that it can be satisfied at once, only that the time of satisfaction is postponed, by the will of the parties, to a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties. and in fact only during the period of time between the genetic phase (of the conclusion) and the implementation phase (of the execution) of the contract that situations can arise that can be traced back to the scheme of art. 1467 cc In contracts with deferred execution, the interest of the creditor would be such that it can be satisfied at once, only that the time of satisfaction is postponed, by the will of the parties, to a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties. and in fact only during the period of time between the genetic phase (of the conclusion) and the implementation phase (of the execution) of the contract that situations can arise that can be traced back to the scheme of art. 1467 cc In contracts with deferred execution, the interest of the creditor would be such that it can be satisfied at once, only that the time of satisfaction is postponed, by the will of the parties, to a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties. execution) of the contract that situations related to the scheme of art. 1467 cc In contracts with deferred execution, the interest of the creditor would be such that it can be satisfied at once, only that the time of satisfaction is postponed, by the will of the parties, to a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also by way of tolerance for the behavior of one of the contracting parties. execution) of the contract that situations related to the scheme of art. 1467 cc In contracts with deferred execution, the interest of the creditor would be such that it can be satisfied at once, only that the time of satisfaction is postponed, by the will of the parties, to a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties. by the will of the parties at a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties. by the will of the parties at a time subsequent to that in which the contract is stipulated and becomes effective. The interval can be foreseen at the time of the contract and, it can likewise be granted later, also as a way of tolerance for the behavior of one of the contracting parties.
The defaulting debtor will avoid incurring this responsibility by proposing a request for termination of the contract, in this way he will be able to obtain the extinction of the obligatory bond. In contracts for consideration, the reduction of the performance is left exclusively to the initiative of the counterparty. (1467 co. 3), the debtor is therefore responsible for the non-fulfillment if he does not perform the service by demanding that the creditor reduce it. The resolution pursuant to art. 1467 cc can be requested only by the party whose performance has yet to be performed, the termination is allowed only to the party who still “owes” the performance which has become excessively onerous. However, the debtor cannot invoke the
The legislative text, art. 1467 cc speaks of the action of the party who owes the performance that has become onerous, while …. the party that has already carried out … the performance … no longer has any charge. Again: “the party who owes this performance can request termination of the contract”. Excessive charges must refer to the performance considered objectively, and not to the subjective situation in which the debtor finds himself. To assess its excessive cost, the service must be assessed objectively (i.e. in relation to the real consistency of the asset being supplied) and not in relation to the subjective conditions of the debtor. This has led the doctrine to consider that, reciprocally, the ease of fulfillment does not preclude recourse to the remedy, in any case in the presence of an excessively onerous service. Excessive onerousness consists in contracts with corresponding services in a supervening disproportion of values ​​that makes one service no longer sufficiently remunerated by the other. With regard to contracts for consideration but for non-corresponding services (eg company contracts), the excessive cost consists in the disproportion between the economic sacrifice of the part paid and the advantage deriving from the contract. The disproportion may result from an increase in the cost of the service due to difficulties in execution or real price increases or from an exceptional decrease in the real value of the consideration due, for example. to monetary devaluation. L’
In this case, the excessive burden would consist in the inconvenience of the burdened party to be bound by a contract of increased size. Thus: the monetary devaluation, like any other event from which an imbalance between the contractual services derives, can justify the termination of the legal transaction due to excessive cost pursuant to art. 1467 of the civil code if, even if not caused by exceptional events, it is unpredictable and extraordinary, provided that the increase in value due to normal market fluctuations has assumed an unpredictable trend at the time of the contract. On the basis of the influence exerted by cognitive psychology, and the belief about the inevitably limited character of the possibility of prediction of the average man, a less rigorous interpretation of the unpredictability requirement pursuant to art. 1467 cc The unforeseeable event can obviously be of any nature and also consist in the issuance of an administrative provision, or a regulatory act. In application to co. 2 of art. 1467, the termination is excluded in cases where the excessive cost falls within the normal scope of the contract.
Part of the doctrine has thus recognized a substantial identity between the notions of normal risk and that of predictability, suggesting that the extraordinary and unforeseeable event was the one exceeding the normal risk of the contract or that there was a presumption of excessive burden whenever the limit of the normal risk, essentially identifying a mere clarification of the provisions of the previous paragraph, that is, of the cases in which the charge is to be considered excessive. However, other authors have opposed this interpretation to the one according to which the concept of normal risk would be an autonomous concept, albeit complementary to that of the extraordinariness and unpredictability of supervenience, stating that, while the latter ‘ lastly, it would identify an objective-quantitative criterion in order to measure the increase in the costs of the service, the concept of normal risk would instead identify a relative-qualitative criterion relating to the risk of the chosen contractual type. For the “Gambino”, the devaluation affecting the consideration could be recognized as an increase in the monetary value of the service due: “the monetary devaluation, in fact […] produces […] an increase in the monetary value of the service due”.
For the purposes of the excessive cost, however, a purely nominal increase in value per se cannot be taken into consideration. The normal risk would therefore be that constituted by the margin of uncertainty of the economic result of the concluded deal, that is, by the risk to which the parties submit, in normal terms, as a result of the deferral of execution. The normal risk, therefore understood in the sense of the burden, imposed on the parties, of providing for the burden of the services that the normal trafficking may entail, means that the party is entitled to resort to the remedy of the termination only in cases in which the supervening leads to an alteration of the planned relationship, which exceeds the ceiling of normality and predictability. Charges are never relevant when you fall within the normal contract risk. Alea regulated by the parties, normal alea, extraordinary but foreseeable event, are among the figures who, by settling themselves, constitute the area of ​​the risks borne by the debtor in any case, because this is what the contractual will wants, or because the contract must be interpreted. and integrated. The supervening excessive charge is relevant only to the extent that it derives from extraordinary and unforeseeable events, the code has thus delimited the scope of operation of the supervening excessive charge, excluding that the debtor can allege the economic burdens that fall within the normal scope of the contract , i.e. that derive from ordinary or foreseeable market fluctuations. Extraordinary events are those that rarely occur, outside the norm such as wars, riots, natural cataclysms etc. The remedy: the reduction to equity or the dissolution of the bond The reduction of the contract to equity is an alternative to the termination of the contract. The counterparty can avoid termination by offering to fairly modify the conditions of the contract in order to remove the excessive supervening cost, it is a question of bringing the contract back within the boundaries marked by the normal alea.
The reduction of the contract to equity is a power of the counterparty, which responds to the principle of conservation of the contract. The counterparty does not propose a modification of the contract, but rectifies it in such a way that the burdened part is relieved from the excessive burden of the performance. The acceptance of the part paid is not necessary to complete the rectification but to make it irrevocable. If the party disputes the rectification, it is up to the judge to ascertain its adequacy which must be assessed with reference to the situation existing at the time of the sentence. The contract can be considered reduced to equity when the difference between the two performances is brought back within the limits of the normal risk of the contract respecting the original balance, the function of reducing the contract to equity is not to create a new contractual structure but to maintain the structure desired by the parties. The reduction of the contract to equity is provided for by the code as a means of avoiding the request for termination of the contract (1467 cc 3 ° co.).
The reduction of the performance to equity is the remedy granted to the party charged in the contracts, i.e. who has assumed obligations, this may request a reduction of its performance or a modification in the methods of execution sufficient to bring it back to equity (1468 cc), the reduction of the performance with respect to the contract and the counterparty’s power to avoid termination.
